CASAC seeks personal costs order against Public Protector

CASAC is a seeking a punitive personal costs order against Public Protector, Adv Busisiwe Mkhwebane, in its application to review and set aside the Report on the Vrede Dairy Farm.

Following receipt of the record of decision (The Rule 53 Record) from Adv Mkhwebane it is clear that she had deliberately curtailed the investigation and acted in a manner inconsistent with the demands of an independent office. In its supplementary affidavit, CASAC’s Executive Secretary, Lawson Naidoo highlights the following aspects revealed by the Rule 53 Record:

• A National Treasury Report which had previously not been made public pointed to the active involvement of senior politicians, former Premier Ace Magashule and former MEC for Agriculture, Mr Mosebenzi Zwane, in facilitating the unlawful project, and recommended that disciplinary action be taken against the head of the Department of Agriculture, Mr Peter Thabethe and its CFO, Ms Dlhamini – no such action has been taken;
• The Final Report on the ‘Vrede Integrated Dairy Project’ released by Adv Mkhwebane on 8 February 2018 made no reference to a Provisional Report having been prepared as is the custom in such investigations by the Public Protector. However the Record now shows that such a Provisional Report was concluded by former Public Protector, Adv Thuli Madonsela. Of particular concern is that it now appears that Adv Mkhwebane altered that Provisional Report in material ways to exonerate the officials named above. In the Provisional Report, Adv Madonsela found that:
o the accounting officer (Mr Thabethe) was guilty of improper conduct, abuse of power and maladministration Yet Mkhwebane’s report said that the Premier institute disciplinary action against “implicated officials’, removing the specific reference to Mr Thabethe
o a proper accounting and forensic investigation and audit be conducted by the Auditor General was necessary to verify all expenditure incurred in the project and whether there was value for money – this was inexplicably excised from the Final Report
o the Special Investigating Unit (SIU) should conduct a forensic investigation into maladministration, improper conduct by Departmental officials, and the unlawful expenditure of public funds – this was also removed from the final report by Adv Mkhwebane.

In his supplementary affidavit, Naidoo states:
“In the absence of any explanation from the Public Protector, CASAC submits that the only possible inference, which the Court should not hesitate to draw, is that she deliberately curtailed the Report’s findings and remedial action in an effort to protect Department officials, and thereby acted for an improper purpose and in bad faith.”
CASAC question’s Adv Mkhwebane’s motives in pleading that she will not oppose its application and that she will abide by the decision of the court. This appears to be a feeble attempt to avoid having to explain the inconsistencies between the provisional and final reports and her motives in sanitising Adv Madonsela’s provisional report. As a result CASAC has also amended its Notice of Motion and no longer seeks to compel the Public Protector to investigate the complicity of senior political figures – she cannot be trusted to do so.
We also point out that Adv Mkhwebane has misled Parliament. Appearing before the Portfolio Committee on Justice and Correctional Services on 17 April, she indicated that she will now institute an investigation into the politicians involved in the project without disclosing that she had amended the provisional report to specifically exclude them from further scrutiny.
In terms of her affidavit filed together with the Rule 53 Record, Adv Mkhwebane argues that resource constraints precluded her from conducting a more thorough investigation, yet fails to explain how she was so constrained. We point out that she did not subpoena any witnesses, nor did she attempt to speak to any of the supposed beneficiaries of the project. This would not have required any significant resources, and she therefore failed to conduct a rational, reasonable and lawful investigation into the Project notwithstanding any financial constraints.
CASAC seeks orders declaring that Adv Mkhwebane has failed to discharge her duties in terms of the Constitution as well as the Public Protector Act, and that her Report into the Vrede Dairy Project be set aside as being unconstitutional, unlawful and invalid.

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ABOUT CASAC

CASAC is a project of progressive people who seek to advance the South African Constitution as the platform for democratic politics and the transformation of society. It embraces the contestation of ideas, and encourages debate on how best to build a just and equal society in which people can live securely and with dignity.